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Zierke v. Sadd

United States District Court, N.D. West Virginia

July 30, 2019

GARY ZIERKE, Petitioner,
v.
JENNIFER SAAD, Respondent.

          MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE

         I. Procedural History

         The pro se[1] petitioner, Gary Zierke (“Zierke”), filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. ECF No. 1. Petitioner is a federal inmate formerly incarcerated at FCI Gilmer in Glenville, West Virginia, and now housed at U.S.P. Hazelton in Bruceton Mills, West Virginia. In his petition, Petitioner challenges the validity of his conviction and sentence from the United States District Court for the District of Nebraska. ECF No. 1. The petitioner asserts that his conviction should be set aside and further alleges that his sentence is no longer valid. Id. at 5. For relief, petitioner requests a “show cause order from the government, ” that the closing arguments of his trial be ordered, a “transfer to U.S. District Court for evidentiary hearing, ” and to appoint counsel. Id. at 9.

         The action was referred to United States Magistrate Judge James P. Mazzone for initial review and report and recommendation pursuant to Local Rule of Prisoner Litigation Procedure 2. The magistrate judge filed a report and recommendation recommending that petition be denied and dismissed without prejudice. ECF No. 11. The magistrate judge informed the petitioner that if he objected to any portion of the report and recommendation, he was required to file specific written objections within 14 days after being served with a copy of the report and recommendation. The petitioner then filed untimely objections. ECF No. 13.

         For the reasons that follow, this Court finds that the report and recommendation of the magistrate judge should be adopted in its entirety.

         II. Applicable Law

         Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de novo review of any portion of the magistrate judge's recommendation to which an objection is timely made. As to those findings to which timely objections were not filed, all findings and recommendations will be upheld unless they are “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A).

         III. Discussion

         Because the petitioner filed untimely objections to the report and recommendation, all findings and recommendations of the magistrate judge will be upheld unless they are “clearly erroneous or contrary to law.” Upon review of the report and recommendation, this Court finds no clear error in the determinations of the magistrate judge and thus upholds his recommendation to deny the petition and dismiss the petition without prejudice.

         As stated above, this Court finds that although the petitioner did file objections to the magistrate judge's report and recommendation, the objections were not timely filed. In reviewing the record, this Court finds that the service of the magistrate judge's report and recommendation was accepted on June 26, 2019. ECF No. 12. Petitioner's objections were filed on July 15, 2019. ECF No. 13. Thus, the petitioner's objections are untimely.

         However, this Court additionally notes that even if the petitioner had timely filed his proposed objections to the report and recommendation, it would not impact this Court's decision. In considering petitioner's untimely objections under a de novo review, this Court finds that to the extent that Zierke is challenging his conviction, even if he satisfied the first and third elements of Jones[2], the crimes for which he was convicted remain criminal offenses, and therefore, he cannot satisfy the second element of Jones. Further, because petitioner is challenging his sentence in a § 2241, he must meet all four prongs of the test established in United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018), for this Court to have jurisdiction to hear his challenge on the merits. In his recommendation, the magistrate judge correctly found that the petitioner fails to meet the fourth prong of the Wheeler test which requires a showing that due to a retroactive change in the law, his sentence now presents an error sufficiently grave to be deemed a fundamental defect. Lester v. Flournoy, 909 F.3d 708, 715 (4th Cir. 2018).

         In petitioner's untimely objections to the magistrate judge's report and recommendation, the petitioner generally objects to the magistrate judge's analysis of Wheeler, and ultimately reiterates his previous argument relying on McCoy v. Louisiana, 136 S.Ct. 821 (2018), in stating that this Court has jurisdiction under the savings clause. ECF No. 13 at 2. Further, Zierke restates his assertion that he was sentenced to an illegal sentence and must be re-sentenced. Id. at 3.

         To address these objections, this Court finds that the magistrate judge expressly noted that because the requirements of the savings clause are jurisdictional, a § 2241 petitioner relying on the § 2255(e) savings clause must meet the Jones test (if challenging the legality of his conviction) or the Wheeler test (if challenging the legality of his sentence) for the court to have subject-matter jurisdiction to evaluate the merits of the petitioner's claims. Wheeler, 886 F.3d at 423-26.

         In Wheeler, the United States Court of Appeals for the Fourth Circuit concluded that § 2255(e) provides “an avenue for prisoners to test the legality of their sentences pursuant to § 2241, and Jones is applicable to fundamental sentencing errors, as well as undermined convictions.” Id. at 428. When contesting a sentence through a petition filed under § 2241, a petitioner still must meet the savings clause of § 2255. In the Fourth Circuit, § 2255 is deemed to ...


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